Appeal from order of Superior Court, Oct. T., 1971, No. 1568, affirming the judgment of sentence of Court of Common Pleas of Lehigh County, Jan. T., 1969, No. 156, in case of Commonwealth of Pennsylvania v. Francis P. Bobko, Jr.
Malcolm J. Gross, Assistant Public Defender, for appellant.
Thomas J. Calnan, Jr., Assistant District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix.
Appellant, Francis P. Bobko, Jr., was tried jointly with two other co-defendants and was found guilty of armed robbery. Following the denial of post-trial motions, appellant was sentenced to a term of not less than five years nor more than ten years imprisonment. The Superior Court affirmed the judgment of sentence per curiam, with Judge Hoffman filing a dissenting opinion in which Judge Spaulding and Judge Cercone joined. Commonwealth v. Bobko, 221 Pa. Superior Ct. 100, 288 A.2d 925 (1972). We granted allocatur and now we reverse.
The primary question presented in this appeal is whether a new trial should be granted because of the potential prejudice created by the distribution to the jury of a trial booklet which indicated that appellant and his co-defendants were under indictment for charges unrelated to those being prosecuted in the present proceeding.*fn1 Prior to trial, appellant "moved to challenge the panel of the jurors on the grounds that prejudicial matter to the defendant has been distributed to them. . . ." This motion was brought after the jury was sworn, but before the taking of testimony. The trial court summarily denied the motion without explanation.
We believe that presenting the jury with information indicating that appellant was charged with other crimes is prejudicial error. Certainly, possession by the jury of a list of charges pending against the appellant might well have predisposed the jurors to believe the appellant guilty, thus denying him the presumption of innocence. The prejudice created requires that the conviction be set aside and that a new trial be granted.
In Commonwealth v. Trapp, 217 Pa. Superior Ct. 384, 272 A.2d 512 (1970), the Superior Court was confronted
with an analogous situation and held that submitting to the jury trial booklets which included information that the accused was charged with other crimes was reversible error. See Commonwealth v. McDaniel, 217 Pa. Superior Ct. 20, 268 A.2d 237 (1970). The Superior Court reasoned in Trapp that the trial court "might well have prejudiced [appellant] by predisposing the jurors to believe the accused guilty, thus effectively stripping him of the presumption of innocence." 217 Pa. Superior Ct. at 387, 272 A.2d at 513 (quoting from Commonwealth v. McDaniel, 217 Pa. Superior Ct. at 23, 268 A.2d at 238). As the Superior Court pertinently observed: "The prejudice to the defendant was further aggravated by the fact that the booklets listed other burglaries charged against co-defendant. Jurors are very likely influenced by the maxims of guilt by association and 'birds of a feather flock together'. Almost inevitably, appellant would be tarred with the same brush as the co-defendant. The intrusion into the trial of other alleged crimes raised issues to which appellant could not realistically present a defense. Clearly, appellant's association with the other charges and with co-defendant tended to show that he was guilty of other crimes and effectively stripped him of the presumption of innocence." 217 Pa. Superior Ct. at 387, 272 A.2d at 514.
The trial court, in its opinion written following post-trial motions, indicated that it was aware of Commonwealth v. Trapp, supra, but felt that it could be distinguished from the instant case. In Trapp, the defendant, upon learning that the jury had the trial booklet, moved for a mistrial. Here, the appellant made a pretrial motion to challenge the jury panel. The trial judge, in his opinion, pointed out that appellant's ...